A Setback For the Administrative State

One of the Obama administration’s many instances of administrative overreach was the EPA’s “Clean Water rule,” which expanded the definition of “waters of the United States” as used in the Clean Water Act. Some say that the definition is so expansive as to give the federal agency jurisdiction over your back yard. Eighteen states sued to enjoin enforcement of the EPA’s rule, and today, a three-judge panel of the 6th Circuit Court of Appeals stayed enforcement of the rule pending a fuller hearing on the merits.

[W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims. Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).

The explosive growth of the undemocratic, unaccountable administrative state is perhaps the greatest danger to our freedom. The EPA is perhaps the worst malefactor. While this litigation is not over, the 6th Circuit’s action is a welcome check on this particular effort to expand federal power.